Key Real Estate Security Interests & Property Rights

Understanding Mortgages: Security and Rights

A mortgage is a real right of security established on a property, which remains in the debtor's possession, to guarantee a cash credit. It functions as a security interest. Mortgages apply specifically to property.

Key Characteristics of a Mortgage

• Accessory: It is an accessory right because if the principal obligation it guarantees is extinguished, the mortgage is also extinguished.
• Indivisible: Each part of the mortgaged property, and every part thereof, is liable for the payment of the entire debt and each share of it.
• Conventional: It arises from an agreement between parties.
• Formal: It must be executed by a public deed and registered at the land registry.

Effects of a Mortgage

The owner continues in possession of the property but cannot perform juridical or physical acts that diminish its value. The mortgagee has a preferential right to recover their credit over other creditors and may seek judicial sale of the property if not paid on time. It takes effect against third parties from the date of its grant, provided it is registered in the property registry within 6 days; otherwise, it takes effect from the day of its enrollment.

Understanding Pledges

A pledge occurs when a debtor, for a certain or conditional, present or future obligation, gives the creditor a movable thing or a security credit as collateral for the debt. Unlike a mortgage, the object of a pledge is a movable item that is delivered to the creditor. Only the owner of the item with the capacity to alienate it can constitute a pledge. Similarly, only someone capable of contracting can receive an item in pledge.

Horizontal Property Explained

In horizontal property, each owner is the exclusive owner of their apartment or unit and a co-owner of the land and all common elements of the building or those essential for its security.

Owner Obligations in Horizontal Property

• Payment of common expenses in proportion to their share.
• Payment of extraordinary expenses, also proportionately.
• Full payment of taxes and expenses related to their own unit.
• Not using the unit in a manner contrary to its nature.
• Not building or making modifications that affect the building's security or aesthetics.

Co-ownership Regulation and Administration

Co-ownership requires a regulation and administration framework to govern relations between co-owners. This framework establishes rules on assemblies, the appointment of the consortium administrator, the determination of exclusive use spaces, communications, and more.

Antichresis: A Real Right of Possession

Antichresis is a real right granted to a creditor by the debtor (or a third party on their behalf), putting the creditor into possession of a property. It is seldom used today, unlike a mortgage.

Understanding Easements

An easement is a real right, perpetual or temporary, over someone else's property (the servient estate), under which the holder (of the dominant estate or a person) can use it or exercise certain rights of disposition.

Types of Easements

Real Servitude

A real servitude is a right established in favor of the holder of one property (the dominant tenement) over another property belonging to someone else (the servient tenement), for the benefit of the former.

Personal Servitude

A personal servitude is established for the benefit or utility of a specific person, independent of their possession of any property.